Rights & Resources

Responding to Religious Discrimination in the Military

Despite repeated efforts by Congress and military leadership to protect religious freedom within the military, incidents and problems will occur, whether intentional or through negligence. Inevitably, the question arises: What recourse or remedy is available to a service member whose constitutional rights are violated by the military? It is a question courts have yet to address in a comprehensive and satisfactory manner. The unfortunate result is the lingering misconception that no recourse is available. This is incorrect. Service members have limited, yet powerful, avenues to seek redress available to them.

In 1983, the Supreme Court decided Chappell v. Wallace,[1] in which it held that enlisted service members could not sue to recover damages from superior officers for constitutional violations that occur in the course of military service. The Supreme Court’s rationale was that, because of the unique and special nature of the military, Congress created a separate system of justice for service members under the Uniform Code of Military Justice (UCMJ).[2] Were the Court to craft a judicial remedy exposing officers to personal liability to those whom they command, it could severely undermine the special nature of military life, which includes the need for good order and discipline, unit cohesion, morale, etc. Moreover, because Congress—to whom the Constitution delegates control over the armed forces—could have but did not provide a cause of action and remedy for constitutional violations by individual officers, any judicially created remedy would be inconsistent with Congress’ authority in military matters.[3] In other words, the Chappell Court held there is no military analog to what is known as a “Bivens[4]action,” meaning enlisted service members may not sue their superiors for constitutional violations. Subsequent action—both by Congress and courts—raise serious questions about Chappell’s continued validity.

In 1986, the Supreme Court decided the case of Goldman v. Weinberger.[5] In Goldman, the Court held that the U.S. Air Force did not violate the First Amendment rights of an Orthodox Jew and ordained rabbi who served in the Air Force by prohibiting him from wearing his yarmulke while indoors and on duty. The Court held that the regulation at issue reasonably and even-handedly regulated attire in a manner that accomplished the military’s need for uniformity and discipline.[6] Although Rabbi Goldman did not prevail on the merits of his constitutional claim, his case is notable because it stands for the proposition that service members can sue the federal government for violating an individual’s constitutional rights, thereby limiting Chappell’s reach.

Ten years after the Supreme Court decided Chappell, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA).[7] Although a subsequent decision limited RFRA’s reach to only the federal government,[8] RFRA nevertheless prohibits the federal government from substantially burdening a person’s free exercise of religion unless it can demonstrate a compelling interest that is implemented in the least restrictive way. RFRA creates a cause of action when the government is unable to satisfy this standard. By its own terms, RFRA defines “government” as including “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States . . ..”[9] Thus, post-Chappell, Congress did create a cause of action for constitutional violations by individuals. This is another significant crack in Chappell’s foundation. And although it may be difficult to prevail against an individual military officer on a constitutional violation claim—for example, the officer may claim qualified immunity—it is clear that RFRA creates a cause of action for such claims.

Therefore, service members who are victims of constitutional violations may, in fact, sue the United States, the responsible individual, or both.

The following are frequently asked questions (FAQs) regarding the rights and obligations of service members who may be the victim(s) of religious discrimination in the military:

Religious Discrimination Policies

What is the Department of Defense’s policy regarding religious discrimination?

What are my options if my religious beliefs conflict with military policy, rules, regulations, orders, etc.?

Can the military restrict my religious beliefs if those beliefs “offend” others?

What are my options if I believe I am the victim of religious discrimination?

What should I do if I believe the military violated my religious freedom?

Question: What is the Department of Defense’s policy regarding religious discrimination?

Short Answer

The Department of Defense prohibits unlawful discrimination of any kind, which includes religious discrimination.

Legal Answer

The official Department of Defense policy states:

It is Department of Defense policy to promote an environment free from personal, social, or institutional barriers that prevent Service members from rising to the highest level of responsibility possible. Service members shall be evaluated only on individual merit, fitness, and capability.

Unlawful discrimination against persons or groups based on race, color, religion, sex, or national origin is contrary to good order and discipline and is counterproductive to combat readiness and mission accomplishment. Unlawful discrimination shall not be condoned.

It should be noted that sexual orientation and gender identity are not protected classifications within the military. Accordingly, sexual orientation and gender identity are not valid bases for complaints of discrimination within the military. But nevertheless, laws prohibiting unlawful harassment, and the military requirement of good order and discipline, likely prohibit unlawful discrimination within the military based on sexual orientation and gender identity.

A request for religious accommodation will usually be approved unless it interferes with the mission.

If the requested religious accommodation interferes with the mission, it can only be denied if the government can show that denial is: (1) necessary to mission accomplishment; and (2) there is no better alternative.

DoD Instruction 1300.17, of February 10, 2009. The DoD implemented significant changes to DoD Instruction 1300.17 on January 24, 2014. Those changes are reflected in the Religious Freedom in the Military FAQ.

Question: Can the military restrict my religious beliefs if those beliefs “offend” others?

Short Answer

Only if the military can demonstrate a compelling government interest that is furthered by the least restrictive means.

Legal Answer

The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb – 2000bb-4, applies to the federal government, including the military. RFRA prohibits any substantial burden on the free exercise of religion unless there is a compelling governmental interest that is furthered by the least restrictive means. In 2014, Congress made it clear that RFRA applies to the military.

Section 532 of the Fiscal Year (FY) 2014 National Defense Authorization Act (NDAA), is entitled “Protection of Rights of Conscience of Members of the Armed Forces and Chaplains of Such Members.”

RFRA and Section 532 are implemented in the military by DOD Instruction 1300.17.

It states:

“Unless it could have an adverse impact on the military readiness, unit cohesion, and good order and discipline, the Armed Forces . . . may not use such expression of . . . the sincerely held conscience, moral principles, or religious beliefs . . . as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.”

Military and federal courts have also struck down military attempts to censor or restrict expression simply because some may be offended.

Perceived offense is not the test courts use to determine whether the military can censor religious expression. Instead, the test is whether there is religious coercion, which the Establishment Clause of the First Amendment forbids. In the context of the Establishment Clause, the United States Supreme Court has repeatedly, and recently, stated that, offense does not equal coercion. Town of Greece v. Galloway, 134 S. Ct. 1811, 1826 (2014); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 44 (2004). Moreover, in United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), the Court of Appeals for the Armed Forces stated that even racist or supremacist speech is not always punishable under the Uniform Code of Military Justice (UCMJ), because it is protected by the First Amendment. If the First Amendment protects racist or supremacist speech, then it certainly protects religious speech.

In 1972, the highest military court recognized that “we must be sensitive to protection of ‘the principle of free though—not free though for those who agree with us but freedom for the thought that we hate.’” United States v. Priest, 21 U.S.C.M.A. 564 (C.M.A. 1972). The court went on to explain that speech is protected unless it undermines the effectiveness of response to command.

Even if a military commander believes an offensive message is contrary to military readiness, unit cohesion, good order and discipline, etc., the commander does not have carte blanche to censor expression. A military commander who engages in censorship in an arbitrary and capricious manner, even under the guise of military necessity, may find him or herself on the losing end of a lawsuit. Such was the case in Nieto v. Flatau, 715 F.Supp. 2d 650 (E.D. N.C. 2010).

Jesse Nieto’s son, Marc Nieto, was an American Sailor killed in the Islamic terrorist attack on the U.S.S. Cole in 2000. Mr. Nieto, a retired U.S. Marine, worked as a civilian contractor at Marine Corps Base Camp Lejeune, North Carolina. In response to his son’s death, Mr. Nieto began displaying various decals on his vehicle to honor his son’s memory, and to express his views criticizing Islam and terrorism.

In 2008, Camp Lejeune officials began receiving complaints that Mr. Nieto’s decals were offensive. Colonel Richard Flatau, Jr., the base commander, responded by ordering Mr. Nieto to remove his decals, citing Camp Lejeune regulations prohibiting “extremist, indecent, sexist, or racist messages on . . . motor vehicles in any format.” When Mr. Nieto refused to remove the decals from his vehicle, Camp Lejeune officials ordered him to remove his vehicle from Camp Lejeune, and banned him from the base and all other federal installations until he complied. Mr. Nieto sued, arguing that Colonel Flatau applied the base regulation against him in an arbitrary and capricious manner, and that he engaged in viewpoint discrimination.

The court agreed with Mr. Nieto, holding that because Camp Lejeune officials permitted some decals to be displayed, they could not arbitrarily pick and choose those decals that were not permitted simply because some may find their message offensive. Specifically, pro-Islam messages were permitted, while anti-Islam messages were not. Importantly, the court stated “[w]hile the military may have greater leeway in restricting offensive material in furtherance of securing order and discipline among its troops, it may not do so in a manner that allows one message while prohibiting the messages of those who can reasonably be expected to respond.” This form of censorship is referred to as viewpoint discrimination, and it is unconstitutional.

Section 532 of the Fiscal Year (FY) 2014 National Defense Authorization Act (NDAA)

DOD Instruction 1300.17

Question: What are my options if I believe I am the victim of religious discrimination?

Short Answer

Service members can file a complaint of discrimination with military officials.

Legal Answer

Service members have several options available should the wish to complain of religious discrimination.

In accordance with DoD Directive 1350.2, each military branch has a Military Equal Opportunity complaint process.

For the United States Army, see AR 600-21, Chapter 6.

For the United States Navy/Marine Corps, see OPNAVINST 5354.1F, CH-1.

For the United States Air Force, see AFI 36-2706, Chapter 3.

For the United States Coast Guard, see COMDTINST M5350.4B, Chapter 3.

Article 138, Uniform Code of Military Justice, also provides a formal complaint/grievance procedure when a service member believes he/she has been wronged by his/her commanding officer. A complaint under Article 138 can address a broad range of wrongs within a command. There need not be direct violation of a military regulation or law. And while the commanding officer is the one against whom the complaint is brought, the actual wrong may be his or her failure redress a wrong committed by other personnel under the commander’s authority.

Each military branch has detailed instructions on how to file Article 138 complaints.

The United States Army’s provisions for Article 138 are found in AR 27-10, Chapter. 19. Section 19-4.e defines a wrong as:

A discretionary act or omission by a commanding officer, under color of Federal military authority, that adversely affects the complainant personally and that is

1) In violation of law or regulation;

2) Beyond the legitimate authority of that commanding officer;

3) Arbitrary, capricious, or an abuse of discretion; or

4) Materially unfair.

The United States Navy/Marine Corps provisions for Article 138 are contained in JAGINST 5800.7F (JAGMAN), Chapter 3. Section 0303.f defines a wrong as:

Any act, omission, decision or order, except those excluded by subsection 0304 [covering acts not the subject of Art. 138 complaint], taken, caused, or ratified by a “commanding officer,” under color of that officer’s military authority that:

1) Results in personal detriment, harm, or injury to a military subordinate;

2) Is without substantial basis, unauthorized, arbitrary and capricious, unjust, or discriminatory;

3) Is properly capable of redress in command channels.

The United States Air Force provisions are found in AFI 51-904. Section 2.7 defines a wrong as:

A discretionary act or omission by a commander, that adversely affects the member personally, and that, for example, is:

2.7.1 In violation of law or regulation.

2.7.2 Beyond the legitimate authority of that commander.

2.7.3 Arbitrary, capricious, or an abuse of discretion.

2.7.4 Clearly unfair (for example – selective application of administrative standards/action, either in the type of standard/action applied or in the severity of the penalty imposed, which results in a clearly unfair application of the administrative standard/action).

The United States Coast Guard provisions are found in COMDTINST M5810.1D, Chapter 7.

NOTE: Each military branch also provides specific procedures that must be followed when submitting an Article 138 complaint.

In addition to Article 138, each military branch also provides for filing of grievances and complaints through the Office of the Inspector General.

Regulations

Article 138, UCMJ (10 U.S.C. §938)

DoD Directive 1350.2

AR 600-21

AR 27-10

OPNAVINST 5354.1F, CH-1

JAGINST 5800.7F

AFI 36-2706

AFI 51-904

COMDTINST M5350.4B

COMDTINST M5810.1D

Question: What should I do if I believe the military violated my religious freedom?

Short Answer

If you believe that the military is discriminating against you because of your religious beliefs, please contact First Liberty Institute.

Legal Answer

Although we cannot guarantee that we will represent you, we may be able to assist you in determining what rights you have.

There are several options for contacting First Liberty Institute:

Phone: First Liberty Institute Armed Forces Hotline: 1-800-259-9109

First Liberty Institute is committed to defending the religious rights of service members. This information is only intended to provide general guidance and should not be construed as legal advice.

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